OUJI-CR 9-20

EVIDENCE - IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

Evidence has been presented that on some prior occasion (the defendant)/ ([Name of Witness]) (made a statement)/(acted in a manner) inconsistent with his/ her testimony in this case. This evidence is called impeachment evidence and it is offered to show that the defendant's/witness's testimony is not believable or truthful. If you find that (a statement was made)/(the acts occurred), you may consider this impeachment evidence in determining what weight and credit to give the testimony of (the defendant)/(that witness). You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the defendant/witness, if at all.

[However, if you find the statements of (the defendant)/ ([Name of Witness]) were made [Specify When, Where, and To Whom the Statements Were Made], the statements may also be considered as proof of innocence or guilt.]

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Notes on Use

The bracketed paragraph should be used if there were any prior inconsistent statements admitted at trial that the jury may also consider for proof of innocence or guilt, either because they are not hearsay under the definitions in 12 O.S.Supp. 2008, § 2801, or because they come within any of the exceptions to the hearsay rule in 12 O.S.Supp. 2008, §§ 2803 , 2804. The instruction should clearly specify which prior inconsistent statements may also be used for substantive purposes.

The trial court should be especially careful when giving more than one limiting instruction to avoid inconsistencies between them. See Lewis v. State, 1998 OK CR 24 ¶ 22, 970 P.2d 1158, 1168 (limiting instructions on other crimes evidence and the basis of opinion testimony were confusing and contradictory when given together because the only evidence of other crimes came in as the basis of opinion testimony).

Committee Comments

Many Oklahoma cases place the onus on the trial court of clearly informing the jury as to the restricted permissible use of impeachment evidence. See, e.g., Pettigrew v. State, 1959 OK CR 116, 346 P.2d 957; Gillaspy v. State, 1953 OK CR 38, 255 P.2d 302, 96 Okl. Cr. 347; Farley v. State, 1950 OK CR 163, 226 P.2d 1002, 93 Okl. Cr. 192; Akins v. State, 1950 OK CR 28, 215 P.2d 569, 91 Okl. Cr. 47; Dunham v. State, 1943 OK CR 126, 143 P.2d 834, 78 Okl. Cr. 54; Broshears v. State, 1920 OK CR 35, 187 P. 254, 17 Okl. Cr. 192; Thomas v. State, 1917 OK CR 103, 164 P. 995, 13 Okl. Cr. 414; Sturgis v. State, 1909 OK CR 66, 102 P. 57, 2 Okl. Cr. 362. Refusal to give this limiting instruction upon request is reversible error. Cloud v. State, 1929 OK CR 25, 273 P. 1012, 41 Okl. Cr. 395; Thomas v. State, supra. The Court of Criminal Appeals has held that under certain circumstances, such as where a substantial part of the State's presentation of evidence consists of impeachment of the in-court testimony of its own witnesses, a "positive duty" devolves upon the court to admonish the jurors with respect to the proper use they may make of impeachment evidence, and failure to fulfill this obligation constitutes reversible error. Leeks v. State, 1952 OK CR 110, 245 P.2d 764, 95 Okl. Cr. 326. The court has termed the failure to instruct concerning the limited effect of impeachment evidence as harmless error where such evidence was not deemed to form a substantial part of the State's case. Sykes v. State, 1977 OK CR 311, 572 P.2d 247; Foreman v. State, 1927 OK CR 249, 259 P. 176, 38 Okl. Cr. 50. However, the Commission is of the opinion that this limiting instruction should be given on the court's own motion in every instance of impeachment, particularly where the impeachment evidence consists of substantively inadmissible statements of the defendant admitted for the limited purpose of affecting his credibility under the rule of Harris v. New York, 401 U.S. 222 (1971).

Section 2607 of the Oklahoma Evidence Code, 12 O.S.1991, § 2607, constitutes a major change in Oklahoma law by providing: "The credibility of a witness may be attacked by any party, including the party calling him." Thus, to forestall potential abuse of this provision by use of a witness at trial solely in order to impeach him with a substantively inadmissible prior inconsistent statement, the Commission reiterates that this limiting instruction should be given by the trial judge in every instance of impeachment, whether requested or not. Section 2613, 12 O.S.1991, § 2613 , sets forth the formal requirements for impeachment of a witness by prior inconsistent statements.

In Omalza v. State, 1995 OK CR 80, ¶¶ 50-54, 65-66, 911 P.2d 286, 303, 305, the jury was given contradictory instructions on the use of prior inconsistent statements, and the Oklahoma Court of Criminal Appeals ruled that these instructions were inadequate to properly inform the jury of the applicable law.

2009 SUPPLEMENT